R.S. Broomfield, Ag. C.J.
1. This is an appeal by one Baptist De Souza who has been convicted of offences under Sections 4(a) and 5 of the Bombay Prevention of Gambling Act.
2. The appellant, who has described himself as a motor mechanic, lives in room No. 25 in Bombay Development Department Chawl No. 17 at Worli. Sub-Inspector Tonpe of the Delisle Road Police Station, having reason to suspect that he was using this room for gambling purposes, obtained a warrant for the search of the premises. He then followed the procedure which has come to be common form in these cases. He marked some coins, gave them to one Jairam Mahadev, a bogus punter, and instructed him to lay bets on certain figures at the place of the accused. The Sub-Inspector and the punter and some constables then proceeded to the Chawl. The punter was sent upstairs with one of the police constables and the Sub-Inspector waited below. After a few minutes the punter returned and said that the bet was laid. The Sub-Inspector then went upstairs and found the appellant and another person, who was accused1 No. 2 in the case, in room No, 25. It appears that before the Sub-Inspector entered the room, the police constable, who had gone up with the punter, had entered it and arrested the appellant who, according to him, was writing something on a piece of paper. A panchnama appears to have been made in the presence of panchas, but they have not been examined as witnesses. According to the evidence of the Sub-Inspector, the following things were found in the room. The other accused had seven annas and a pencil with him. In the corner where the appellant was standing, on a shelf there were several coins, including the marked coins, and also a small slip of paper with some figures and names written in pencil in the Marathi language. The last figures appearing on this piece of paper are figures 5, 2 and 9, which, according to the Sub-Inspector, are the figures on which the punter was told to bet. There is also a name which may possibly correspond with the first part of the name of the punter but is hardly legible. There is some inconsistency between the evidence of the Sub-Inspector and that of the constable with regard to this piece of paper. The constable says that when he entered the room, the appellant crumpled up the piece of paper and threw it on the floor. The Sub-Inspector says, on the other hand, that it was found: on the shelf. The failure to examine the panchas and to produce independent evidence as to what was found at the raid is a serious omission in this case for reasons which will appear in a moment.
3. A point has been taken on behalf of the appellant that the proceedings were irregular because the warrant was in the name of the Sub-Inspector, it was he who was empowered) to enter the room, and before he did so, one of his constables had already entered and arrested the accused. But it cannot be suggested that the Sub-Inspector is required to arrest everybody with his own hand. If he had not been present at all, there might have been something in the point. But as he was present, although not actually on the first floor where the room is situated, and as he himself entered the room almost immediately afterwards, we do not think it can possibly be argued that the irregularity, such as it was, vitiates the warrant or the proceedings in any way. If this were the only point in this case, we would have no difficulty in confirming the conviction.
4. There is, however, a serious and, in our opinion, a vital defect in the prosecution case. The evidence produced for the prosecution is completely inconsistent as to the place where the alleged gaming took place and as to the person with whom it took place. The punter has deposed that he laid his bet on the figures 5, 9 and 2 in the passage on the first floor and not in any room, and that he laid his bet with a fat Christian. The appellant is at Christian, but he is not fat, and the punter has expressly stated that he did not lay his bet with him. The other accused was not a Christian. The evidence of the police constable, who entered the room before the Sub-Inspector, is that the punter entered the room and laid his bet with the appellant who was inside the room. In the course of his evidence this witness' has stated that he actually saw the punter giving money to the accused, i.e. the appellant. He explained that by saying that he meant that he heard the jingling noise of the coins as they fell into the appellant's hand. Then he went on to say that the punter was counting out the coins to the appellant and then he saw them. The Magistrate went to view the scene of offence with counsel in the case, and it appears from his inspection notes that it was not possible for the constable to see anything of what happened inside from the place where he was.
5. It appears from the judgment that the Magistrate did not believe the punter, and in effect he has discarded his evidence. If that is done, the question obviously arises whether there is sufficient evidence to justify the conviction of the accused. It is clear that the police cannot have it both ways. These bogus punters are usually very unsatisfactory witnesses. It does not much matter whether they are called accomplices or spies or Police agents. They are usually without employment or business of any kind. The punter in this case says that he is la mill hand, but he admits that he has been without work for seven or eight months, on account of illness, as he says. In fact they are usually rather disreputable people. No doubt it is very difficult to get better evidence, and the police may have to make use of such people, and if their evidence is corroborated and fits in reasonably well with the prosecution case, the Court may be justified in relying on it. But, if the punter is called as a witness and does not support the prosecution case, it is obviously worse than if he was not called at all. In a case like the present the Court is really asked to rely implicitly on the evidence of the police officers, and on the strength of their evidence to assume that things did not happen in the way the punter says but quite differently. The Sub-Inspector was downstairs and can have no personal knowledge of what happened. The constable followed the punter and was standing some little distance from the room, but, as I have said, it was impossible for him to see what happened inside the room, and there is no doubt that in his evidence he has pretended to have seen much more than he actually did.
6. It is quite likely that the unsatisfactory character of the punter's evidence may be due to the delay in disposing of the case. The failure to produce the panchas to prove the panchanama is obviously due to that delay. Only the other day we had to comment on the time taken in the disposal of these Rambling cases, and this is an even worse example. The date of the offence was July 16, 1936. The case was commenced on July 27, 1936. There were then no less than thirty postponements, mostly for want of time. Not one of these postponements was at the instance of the accused. After all this.
7. on September 2, 1938, the case was postponed again, the only reason given being that the police wanted time. Even after that there were several more postponements, some owing to the illness of the Sub-Inspector and some for want of time. The first hearing of the case was on December 2, 1938. The extraordinary thing is that apparently it never occurred to any. body that there was anything scandalous or oppressive in this state of things. I presume that the accused had to attend the Court on every occasion, and so also the witnesses, except when they stayed away. When they stayed away, the case was automatically postponed for that reason. Everybody knows that the Presidency Magistrates are very busy, and it may be impossible to avoid postponement of a case occasionally because the Court occupied in other work. But when a case is dragging on for months and years, it must be somebody's duty to see that it is fixed on a date when it can certainly be taken up and disposed of without fail. We trust that the Magistrates concerned will pay serious attention to what we can only regard as a scandal.
8. Returning to the circumstances of the present case, we do not think that the Court can possibly be expected to rely on the mere statements of the police officers so long after the event without any independent corroboration. The learned Government Pleader argued that the mere fact of the finding of the marked coins and the slip of paper with figures on it in the room is sufficient to justify the conviction of the appellant. That could only conceivably be so if the evidence made it perfectly clear that these articles were instruments of gaming. In our opinion, the evidence produced in the present case does not establish that.
9. We, therefore, allow the appeal and set aside the conviction. The fine, if paid, must be refunded.
10. Out of the money ordered to be credited to Government eight annas to be returned to the appellant.